[2019] KEELC 5035 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT & LAND COURT

ELC APPEAL NO. 10 OF 2017

INTERCOUNTRIES IMPORTERS AND EXPORTERS LTD....APPELLANT/APPLICANT

VERSUS

TOTAL SECURITY LIMITED......................................................................1ST RESPONDENT

LE MOLOK LIMITED.................................................................................2ND RESPONDENT

TELEPOSTA PENSION SCHEME REGISTERED TRUSTEES............3RD RESPONDENT

COMMISSIONER OF LANDS....................................................................4TH RESPONDENT

THE ATTORNEY GENERAL......................................................................5TH RESPONDENT

JUBILEE INSURANCE COMPANY LIMITED.......................................6TH RESPONDENT

PARK AVENUE INVESTMENTS LIMITED............................................7TH RESPONDENT

TRUST BANK LIMITED (IN LIQUIDATION)........................................8TH RESPONDENT

(Being an Appeal from Business Premises Rent Tribunal Reference No. 902 and 903 (Consolidated) of 2016

at Nairobi given by Mbichi Mboroki, Chairman Business Premises Rent Tribunal on 10th February, 2017)

BETWEEN

TOTAL SECURITY LIMITED..............................................................TENANT/APPLICANT

LE MOLOK LTD.....................................................................................TENANT/APPLICANT

VERSUS

TOTAL SECURITY LIMITED....................................................................1ST RESPONDENT

LE MOLOK LIMITED.................................................................................2ND RESPONDENT

TELEPOSTA PENSION SCHEME REGISTERED TRUSTEES............3RD RESPONDENT

COMMISSIONER OF LANDS.....................................................................4TH RESPONDENT

THE ATTORNEY GENERAL......................................................................5TH RESPONDENT

JUBILEE INSURANCE COMPANY LIMITED........................................6TH RESPONDENT

PARK AVENUE INVESTMENTS LIMITED..............................................7TH RESPONDENT

TRUST BANK LIMITED (IN LIQUIDATION)..........................................8TH RESPONDENT

RULING

BACKGROUND

1. The Appellant/Applicant filed a Notice of Motion dated 19th March, 2018 in which it seeks the following orders that:-

1. The Appellant be and is hereby given leave to file a supplementary Record of Appeal.

2. The Supplementary Record filed herewith be deemed duly filed.

3. This appeal be consolidated with High Court Environment and Land Cause No. 1343 of 2016 between the same parties.

4. The costs of the application be in the cause.

2. The Applicant filed an appeal to this Court on 10th March, 2017 against the Ruling of the Chairman of the Business Premises Rent Tribunal delivered on 10th February, 2017. A Record of Appeal was filed on 5th April, 2017. An application seeking admission of the appeal was filed on 20th April, 2017. This application also sought other prayers. A Ruling in respect of the Notice of Motion filed on 20th April, 2017 was delivered on 14th February, 2018. The parties to the appeal were directed to file Written Submissions in respect of the appeal. Highlighting of submissions was set for 11th April, 2018.

3. On the date which had been set for highlighting of submissions, M/s Kethi Kilonzo for the Applicant indicated to Court that they had filed an application dated 19th March, 2018 for which she sought directions of the Court. M/s Kilonzo also indicated that prayer 3 of that application had been spent.

The Court directed that the application be heard on 28th May, 2018. Come 20th May, 2018, the application could not proceed as the 1st and 2nd Respondents had not filed their Replying Affidavit. The Applicant also sought leave to file a Further Affidavit. The application was set down for hearing on 26th September, 2018 when the same proceeded as scheduled.

APPLICANT’S CONTENTION

4. During the hearing of the application, M/s Kethi Kilonzo argued that there was need for the Appellant to be granted leave to introduce additional documents in the form of a Supplementary Record of Appeal. Already the Applicant had filed a Supplementary Record of Appeal and one of the prayers in the application was that the filed Supplementary Record of Appeal be deemed as duly filed.

5. The Applicant contends that materials relating to ELC 1343 of 2016 are relevant to the appeal herein and that the Applicant was not aware of the existence of the case as it had not been served; that the Applicant only came to know about the existence of the case when a Notice to Show Cause why it should not be dismissed was received by them and that since parties are the same, it is important that the proceedings from that case be put before this Court.

6. The Applicant further argues that the proceedings in HCCC No. 1400 of 2014 show that the leases which were entered into by the 1st and 2nd Respondents and the 3rd Respondent were not part of the evidence adduced in the suit as the same were entered into after a date for Judgement had been reserved.

OPPOSITION BY 1ST AND 2ND RESPONDENTS

7. The Applicant’s application was opposed by the 1st and 2nd Respondents through a Replying Affidavit sworn on 28th May, 2018. The 1st and 2nd Respondents contend that the Applicant’s application is an abuse of the process of the Court; that the materials sought to be introduced are not relevant to the appeal herein and that the Supplementary Record of Appeal seeks to introduce new materials which were not before the Business Premises Rent Tribunal.

8. The 1st and 2nd Respondents further argue that ELC 1343 of 2016 was withdrawn and the materials in the withdrawn case had not been placed before the Tribunal. It is further contended by the 1st and 2nd Respondents that the Applicant has already appealed against the Judgement in HCCC No. 1400 of 2004 and to bring the proceedings in that case is akin to this Court entertaining a review of the Judgement when the matter is already before the Court of Appeal.

The 1st and 2nd Respondent further argue that the Applicant has not sought leave to adduce additional evidence and the Applicant cannot be granted what it did not ask for.

OPPOSITION BY 3RD RESPONDENT

9. The 3rd Respondent opposed the Applicant’s application based on a Replying Affidavit sworn on 25th April, 2018. The 3rd Respondent contends that the issues in ELC 1343 of 2016 and HCCC No. 1400 of 2004 were quite different from the issue in this appeal which is whether the Tribunal had jurisdiction. The 3rd Respondent argues that ELC 1343 of 2016 was withdrawn on 7th November, 2017. The 3rd Respondent further argues that HCCC No. 1400 of 2004 is subject of an appeal to the Court of Appeal where the parties have recorded a consent which has never been set aside or varied.

APPLICANT’S FURTEHR CONTENTION

10. In a Further Affidavit by the Applicant sworn on 20th September, 2018 the Applicant contends that the Memorandum of Appeal filed herein makes reference to HCCC No. 1400 of 2004 and that the 1st and 2nd Respondents filed and relied on a copy of Judgement in HCCC No. 1400 of 2004 during the proceedings before the Tribunal. The Applicant therefore argues that the proceedings in HCCC No. 1400 of 2004 are pertinent in this appeal. The Applicant argues that the proceedings in HCCC No. 1400 of 2004 were not ready as at the time the Tribunal case was filed.

ANALYSIS

11. I have considered the Applicant’s application as well as the opposition thereto by the 1st and 2ndand 3rd Respondents. I have also considered the oral submissions by the Counsel for the parties as well as the authorities filed herein. The prayer for consolidation of this appeal with ELC 1343 of 2016 having been spent, the only issue for determination is whether the Applicant should be allowed to file a Supplementary Record of Appeal.

12. Though the Applicant did not expressly state in the application that it was seeking to introduce additional evidence, it is clear that the purpose of seeking to be allowed to file a Supplementary Record of Appeal was to introduce additional evidence. In the case of Mohamed Abdi Mahamud Vs Ahmed Abdullahi Mohamad & 3 Others [2018]eKLR the Supreme Court of Kenya referred to a decision of the Supreme Court of Uganda in Attorney General Vs Paul Kawanga Ssemwogerere & Another, Constitutional Appeal No. 2 of 2004[2004] UGSC 3 where the Supreme Court stated as follows:-

“An Appeal Court may exercise its discretion to admit additional evidence only in exceptional circumstances which include:-

(i) Discovery of new and important matters of evidence which, after the exercise of due diligence, was not within the knowledge of, or could not have been produced at the time of the suit or petition by, the party seeking to adduce the additional evidence;

(ii) It must be evidence relevant to the issues;

(iii) It must be evidence which is credible in the sense that it is capable of belief;

(iv) The evidence must be such that, if given, it would probably have influence on the result of the case, although it need not be decisive;

(v) The Application to admit additional evidence must be brought without undue delay.”

13. In the case of K. Tarmohamed Vs Lakhani, Sir Kenneth O’ Connor P quoted a passage from the judgment of Denning L.J. in Ladd Vs Marshall (v) [1954] 1 W.L.R. 1489 at P. 1491 which stated as follows:-

“To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

14. As I said hereinabove, the appeal to this Court was filed on 10th March, 2017. The Record of Appeal was filed on 5th April, 2017. The present application was filed on 19th March, 2018 a year after the appeal had been filed. The delay in filing the application for leave to adduce additional evidence is not explained. However, this notwithstanding I have to consider whether the application has met the threshold for grant of leave to adduce additional evidence on appeal.

15. The proceedings in HCCC No. 1400 of 2004 which are sought to be introduced as additional evidence were ready and certified as at 14th November, 2016. The application which triggered this appeal was filed before the Tribunal on 24th November, 2016. Even before the application in the Tribunal was filed, the Judgment in HCCC No. 1400 of 2004 was the subject of an appeal in the Court of Appeal where a consent was entered vide a letter dated 27th September, 2016. If the Applicant was keen, it could have had the proceedings in HCCC No. 1400 of 2004 availed before the Tribunal as the same were ready as at the time the application at the Tribunal was made. The Applicant has therefore failed the first test in the decision by Denning L.J as quoted in the K. Tarmohamed case (Supra) and the Attorney General Vs Kawanga as quoted in the case of Mohamed Abdi Mahamud (Supra).

16. The judgment in HCCC No. 1400 of 2004 is subject of an appeal to the Court of Appeal. The proceedings which resulted in the judgement cannot therefore be of influence in the decision in this appeal. If the matter pending in the Court of Appeal was to be overturned and the evidence would have been admitted, it will not augur well.

CONCLUSION

17. It is clear from the above analysis that the Applicant was not only late in bringing the application but has failed the first and crucial test which demands that the Applicant demonstrate that he was unable to adduce the evidence before the trial if it had exercised due diligence. I therefore find that the application by the Applicant lacks merit. The same is hereby dismissed with costs to the 1st, 2nd and 3rd Respondents.

It is so ordered.

Dated, Signed and delivered at Nairobion this 27thday of March 2019.

E.O.OBAGA

JUDGE

In the presence of M/s Muthama for M/s Kethi Kilonzo for Appellant and M/s Jemutai for M/s Mathenge for 3rd Respondent.

E.O.OBAGA

JUDGE